FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION 

) 

In the Matters of ) 

Americans for Job Security; and j MUR 6538 & MUR 6589 

American Action Network ) 

) 

STATEMENT OF REASONS 

OF VICE CHAIR ANN M. RAVEL, COMMISSIONER STEVEN T. WALTHER, 

AND COMMISSIONER ELLEN L. WEINTRAUB 

"Dark money" groups' are spending vast amounts of money on American elections. 

Millions of dollars are flowing into our political system - over $310 million in the 2012 federal 

elections^ - often to fund aggressively negative ads,^ without any way for the public to know 

where the money is coming from. This is not what Congress intended the campaign finance 

system to do, not what the Supreme Court has insisted should be done, and not how it has long 

been done at the Federal Election Commission. Disclosure laws provide voters with the 

information necessary to evaluate the source of political messages. Unfortunately, the 

Commission has reached an impasse that has prevented us from enforcing the Commission's 

' The term "dark money" generally refers to federal election spending by SOl(c) groups that do not disclose their 

donors, in part because they claim they are not "political committees." See, e.g., Lee Drutman, No, Less Disclosure 

Will Not Reduce Dark Money, SUNLIGHT FOUND. BLOG (Jul. 17,2014,11:49 AM), 

http://sunlightfoundation.eom/blog/2014/07/17/no-less-disclosure-will-not-reduce-dark-money; see a/so Joshua 

Fechter & David Saleh Rauf, 'Dark Money' Group Riles Up Attorney General Candidates, HOUS. CHRON., May 24, 

2014, at 32; Theodoric Meyer, IRS Delays New Rules for Dark Money Groups, PROPUBLICA (May 23,2014,12:05 

PM), http://www.propublica.org/article/irs-pushes-back-new-rules-for-dark-money-groups; Fredreka Schouten, 

'Dark Money' Surges Ahead of Midterms: Certain Groups Spending Tops $23M This Week, USA TODAY, May 14, 

2014, at 3 A; Kellan Howell, Hollywood Increases Political Influence by Funding 'Dark Money' Groups, WASH. 

TIMES, Feb. 27,2014, available at http://www.washingtontimes.eom/news/2014/feb/27/hollywood-fimds-darkmoney-groups-to-increase-poli/. 

^ Robert Maguire, How 2014 is Shaping Up to be the Darkest Money Election to Date, OPENSECRETS BLOG (Apr. 

30,2014), https://www.opensecrets.org/news/2014/04/how-2014-is-shaping-up-to-be-the-darkest-money-electionto-date/. 

' Erika Franklin Fowler & Travis N. Ridout, Negative Angry, and Ubiquitous: Political Advertising in 2012, THE 

FORUM, Dec. 2012, at 59, available at http://www.degruyter.eom/view/j/for.2012.10.issue-4/forum-2013-

0004/forum-2013-0004.xml ("Fully 85% of ads sponsored by non-party organizations were purely negative, and 

another 10% were contrasting, leaving only 5% positive."). 
MUR 6538 (Americans for Job Security) & MUR 6589 (American Action Network) 

Statement of Vice Chair Ravel and Commissioners Waither and Weintraub 

own written policy^ - a policy that should shine a much-needed light on the sources of dark 

money. 

The Commission recently encountered yet another roadblock when it deadlocked, 3-3, on 

whether to investigate two organizations that were alleged to have violated the Federal Election 

Campaign Act by failing to register with the Commission as political committees and report their 

donors and spending.^ Both groups, Americans for Job Security ("AJS") and the American 

Action Network ("AAN"), were heavily involved in political campaigns, spending more than 

$9.5 million and $17 million, respectively, on advertisements supporting or opposing federal 

candidates in close proximity to ±e 2010 elections, without disclosing their donors. At a 

minimum, the Commission should have investigated these organizations in order to vindicate the 

public's interest in knowing the source of political spending. 

The test for political committee status has two parts. An organization satisfies the first 

part by receiving contributions or making expenditures in excess of $1,000 during a calendar 

year.® The second part is satisfied if the "major purpose" of the organization is "the nomination 

or election of a candidate."' This "major purpose" requirement was adopted by the Supreme 

Court, in Buckley v. Valeo, in order to address concerns that the test might otherwise reach 

* See Political Committee Status, 72 Fed. Reg. 5595, 5596-97 (Feb. 7,2007) (Supplemental Explanation and 

Justification) ("2007 E&J"), available at http://sers.fec.gov/fosers/showpdf.htm?docid=34789 (requiring certain 

organizations to register as political committees and report their activity). 

^ See Certification in MUR 6538 (Americans for Job Security), dated June 24,2014; Certification in MUR 6589 

(American Action Network), dated June 24, 2014. In both matters, we voted to find reason to believe that the 

groups violated the Act. Id. Chairman Goodman and Commissioners Hunter and Petersen dissented. Id. 

^ First General Counsel's Report in MUR 6538 (Americans for Job Security), dated May 2,2013, at 21 ("AJS 

FGCR") ("AJS appears to have spent at least $9,507,365 during 2010 on the type of communications that the 

Commission has considered to be federal campaign activity."); First General Counsel's Report in MUR 6589 

(American Action Network), dated Jan. 17,2013, at 25 ("AAN FGCR") ("American Action Network appears to 

have spent at least $17,013,017 during 2010 on the type of communications that the Commission considered to be 

federal campaign activity."). 

^ OGC recommended that the Commission find reason to believe that AJS and AAN violated 2 U.S.C. §§ 432,433, 

and 434 and authorize an investigation to establish the extent, nature, and cost of AJS's and AAN's federal campaign 

activity. See AJS FGCR; AAN FGCR. "Reason to believe" is a threshold determination that by itself does not 

establish that the law has been violated, "but instead simply means that the Commission believes a violation may 

have occurred." See Guidebook for Complainants and Respondents on the FEC Enforcement Process, May 2012, 

available at http://www.fec.gov/em/respondent_guide.pdf (emphasis added). In fact, a "reason to believe" 

determination indicates only that the Commission has found sufficient legal justification to open an investigation to 

determine whether there is probable cause to believe that a violation of the Act has occurred. A "reason to believe" 

finding is appropriate when a complaint "credibly alleges that a significant violation may have occurred, but further 

investigation is required to determine whether a violation in fact occurred and, if so, its exact scope." See Statement 

of Policy Regarding Commission Action in Matters at the Initial Stage in the Enforcement Process, 72 F.R. 12545 

(March 16,2007), available at http://www.fec.gov/law/cfr/ej_compilation/2007/notice_2007-6.pdf (emphasis 

added). 

' 2 U.S.C. § 431(4)(A). The calendar year framework is unambiguous in the statute. 

' BucUey v. Valeo, 424 U.S. 1,79 (1976). 

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MUR 6538 (Americans for Job Security) & MUR 6589 (American Action Network) 

Statement of Vice Chair Ravel and Commissioners Walther and Weintraub 

"groups engaged purely in issue discussion."Since Buckley, the Commission has made 

determinations on a case-by-case basis as to whether an organization has the requisite major 

purpose." In doing so, the Commission has examined an organization's public statements as 

well as its "full range of campaign activities."'^ In 2007, the Commission published a detailed 

Supplemental Explanation and Justification providing its reasons for adhering to the existing 

practice and providing "guidance to all organizations regarding the receipt of contributions, 

making of expenditures, and political committee status."'^ In doing so, it listed a number of 

factors that may properly be considered in determining political committee status that were not 

limited to express advocacy. This "2007 E&J" includes a list of examples of activity from prior 

matters that the Commission considers to be "campaign activities," and therefore indicative of 

major purpose, including: "direct mail attacking or expressly advocating the defeat of a 

Presidential candidate," "television advertising opposing a Federal candidate," spending on 

"candidate research" and "polling," and "other spending ... for public communications 

mentioning Federal candidates." '' Clearly, for the purpose of determining political committee 

status, this list encompasses activity that extends well beyond express advocacy. 

Since 2007, courts in three different circuits have been asked to rule upon the 

constitutionality of the policy embodied in the 2007 E&J. All three found it to be 

constitutional.'^ Yet our colleagues have increasingly contended that any communications not 

containing express advocacy must not be considered in a major purpose analysis, effectively 

eviscerating the Commission's policy as set forth in the 2007 E&J. This argument "fails to come 

to terms with the Commission's longstanding view - upheld by the courts - that the required 

major purpose test is not limited solely to express advocacy (or the functional equivalent of 

express advocacy)."'^ 

In the case of AJS and AAN, spending on advertisements that supported or opposed 

federal candidates - the types of activity identified in the 2007 E&J - made up a majority of each 

organization's total spending in the 2010 calendar year.'^ For example, AJS, an entity organized 

under section 501(c)(6) of the tax code, reported spending over $4.9 million on communications 

''Id. 

" 5ee 2007 E&J at 5596-97. 

''Id. 

" Id. at 5596. 

Id at 5605 (emphasis added). 

" Free Speech v. FEC, 720 F.3d 788,798 (10th Cir. 2013), cert, denied, 134 S.Ct. 2288 (May 19,2014); Real Truth 

About Abortion. Inc. v. FEC, 681 F.3d. 544, 556 (4th Cir. 2012), cert, denied, 133 S. Ct. 841 (2013); Shays v. FEC, 

511 F. Supp. 2d 19,29-31 (D.D.C. 2007); see also Koerber v. FEC, 583 F.Supp.2d 740, 746-48 (E.D.N.C. 2008) 

(denying a motion for a preliminary injunction against the enforcement of the 2007 E&J because the constitutional 

challenge was unlikely to succeed on the merits). 

AJS FGCR at 19; AAN FGCR at 21. 

" As OGC notes in its reports, major purpose determinations do not require that such spending exceed a 50 percent 

threshold of the organization's total spending. See AJS FGCR at 22, n.30; AAN FGCR at 25, n.42. However, such 

spending "is alone sufficient to support a finding of major purpose." Id. 

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MUR 6538 (Americans for Job Security) & MUR 6589 (American Action Network) 

Statement of Vice Chair Ravel and Commissioners Walther and Weintraub 

that expressly advocated for or against a federal candidate ("independent expenditures" '^) in 

2010.' In the same year, AJS also reported spending over $4.5 million on communications that 

mentioned a federal candidate in close proximity to an election ("electioneering 

communications"^®). Each of these advertisements supported or opposed a federal candidate.^' 

Even if one assumes that every other dollar spent by AJS was unrelated to federal candidates -

the assumption most favorable to AJS - at least 76.5 percent (over $9.5 million) of AJS's total 

spending in calendar year 2010 supported federal campaign activity.^^ 

AAN's spending on political advertising was even higher. Formed in 2009 as a 501(c)(4) 

social welfare organization, AAN's largest spending category was electioneering 

communications, totaling almost $13.8 million in calendar year 2010.^^ OGC's analysis of these 

communications concluded that at least $12.9 million was spent on communications close to an 

2 election that supported or opposed a candidate. Additionally, AAN spent a little over $4 

4 million on independent expenditures.^^ Combining these figures, AAN spent a minimum of $17 

0 million on federal campaign activity in 2010.^® Even if one assumes that every other dollar spent 

2 by AAN was unrelated to federal candidates and was spent in calendar year 2010 - the 

5 assumptions most favorable to AAN - at least 62.6 percent (over $17 million) of AAN's total 

g spending in that year supported federal campaign activity.^' 

As these facts demonstrate, both AJS and AAN are political committees under the plain 

language of the 2007 E&J. Without question, the undisputed facts concerning these groups' 

spending were more than sufficient for the Commission to find reason to believe that the law 

See 2 U.S.C. §431(17); 11 C.F.R. § 100.16. 

"AJSFGCRat4-5. 

The term "electioneering communications" is limited to communications made via broadcast, cable, or satellite 

and targeted to the relevant electorate. See 2 U.S.C. § 434(f)(3); 11 C.F.R. § 100.29. Such communications must 

refer to a clearly identified candidate and be made with 60 days of a general election or 30 days of a primary. Id. 

AJS FGCRat5,15-20. 

^ Id. at21-22. AJS spent a total ofslightly over $12.4 million between November 1,2009 and October 31,2010. 

Id. at 4,22. As noted in the FGCR, AJS's tax returns did not allow OGC to pinpoint in which calendar year AJS's 

unreported spending occurred; accordingly, OGC assumed that all of AJS's additional spending "was both unrelated 

to federal campaigns and occurred in calendar year 2010 - the assumption most favorable to AJS." Id. at 22. 

AAN FGCR at 4. 

^ This represents all but two of AAN's communications, which OGC was unable to locate. Id. at 1, 5 n. 17. 

"Id at4. 

"Id. 

" Id. at 25. AAN spent a total of just over $27 million between July 23,2009 and June 30,2011. /rf at 4. As noted 

in the FGCR, AAN's tax returns did not allow OGC to pinpoint in which calendar year AAN's unreported spending 

occurred; accordingly, OGC assumed that all of AAN's additional spending "was both unrelated to federal 

campaigns and occurred in 2010 - the assumption most favorable to AAN." Id. at 25. 

Page 4 of7 
MUR 6538 (Americans for Job Security) & MUR 6589 (American Action Network) 

Statement of Vice Chair Ravel and Commissioners Walther and Weintraub 

may have been violated, and to authorize an investigation. That was the question before the 

Commission.^® 

Each time the 2007 E&J has been challenged in federal court, it has been held 

constitutional.^® Nonetheless, those who have opposed disclosure ignore the only directly 

relevant precedents and insist that the test in the 2007 E&J must be substantially narrowed to 

address their own concerns. In making these arguments, they have handpicked orily the 

decisions of courts that have limited or overturned state campaign finance laws, decisions which 

have no direct bearing on federal campaign finance law.®° Most recently, the anti-disclosure 

camp has pivoted to the decision in Wisconsin Right to Life v. Borland, which struck down 

Wisconsin's registration and disclosure requirements.®' Yet they make no mention of the 

numerous cases in which state disclosure laws have been upheld.®® The Commission is obliged 

to follow the analytic approach enunciated in the 2007 E&J, adopted by a majority vote, and 

consistently upheld by the courts.®® For half of the Commission to do otherwise is unreasonable. 

What seems to have been overlooked in the ongoing stalemate over the Commission's 

policy is that the entire purpose of the political committee status test boils down to a single, 

compelling policy interest: disclosure. ®'' Disclosure of donors and political spending is crucial. 

See note 7. 

^ See note 15. 

For example, our colleagues have recently relied heavily on cases interpreting the New Mexico Campaign 

Reporting Act and North Carolina campaign finance laws. See Statement of Chairman Goodman and 

Commissioners Hunter and Petersen in MUR 6396 (Crossroads GPS), dated Jan. 8,2014, at 7-8 (citing New Mexico 

Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010); North Carolina Right to Life v. Leake, 525 F.3d 274 

(4th Cir. 2010)). In both of the circuit courts where these cases were decided, subsequent caselaw upheld the 

Commission's 2007 E&J. Free Speech v. FEC, 720 F.3d at 798; Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 

at 556. 

" 751 F.3d 804 (7th Cir. May 14,2014). 

" See, e.g.. Human Life of Washington, Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) (upholding political 

committee requirements of Washington State's Public Disclosure Law); Worley v. Florida Secretary of State, 717 

F.3d 1238 (11th Cir. 2013) (upholding political committee requirements of the Florida Campaign Financing 

Statutes); Yamada v. Weaver, 872 F.Supp.2d 1023,1042-53 (D. Haw. 2012) (upholding political committee 

requirements of Hawaii's campaign finance laws). In fact, now that disclosure is the only consequence of political 

committee status, several courts reviewing analogous state political committee statutes have found that it is 

unnecessary to apply the major purpose test. See, e.g. Nat I Org. for Marriage v. McKee, 649 F.3d 34, 59 (1 st Cir. 

2011), cert, denied, 132 S.Ct. 1635 (2012) (upholding political committee requirements of the Maine Clean Election 

Act); Center for Individual Freedom v. Madigan, 697 F.3d 464,490 (7th Cir. 2012) (upholding politicalcommittee 

requirements of the Illinois Election Code); Vermont Right to Life Comm. v. Sorrell, No. 12-2904-cv, 2014 WL 

2958565, at *13-14 (2nd Cir. July 2, 2014) (upholding political committee requirements of Vermont's campaign 

finance laws, noting that the lack of explicit reference to an "express advocacy" test in the laws - which included the 

terms "supporting or opposing one or more candidates" and "influencing an election" in the definition of "political 

committee" - did not make the laws unconstitutional). For now, however, as stated in the 2007 E&J, the major 

purpose test continues to be required in interpreting the relevant provisions of the Act. 

" See note 15. 

See Statement of Reasons of Vice Chair Ravel, Commissioner Walther, and Commissioner Weintraub in MUR 

6396 (Crossroads Grassroots Political Strategies), dated Jan. 10,2014, at 1-2,5. 

Page 5 of7 
MUR 6538 (Americans for Job Security) & MUR 6589 (American Action Network) 

Statement of Vice Chair Ravel and Commissioners Walther and Weintraub 

This is not just our opinion. According to eight Justices of the Supreme Court, disclosure 

"enables the electorate to make informed decisions and give proper weight to different speakers 

and messages."^^ The only consequence of political committee status after Citizens United and 

SpeechNow is that political committees must follow organizational and reporting requirements 

that allow the public to evaluate the source of political messages. The Supreme Court has 

repeatedly upheld such requirements, finding them to be "the least restrictive means of curbing 

the evils of campaign ignorance and corruption that Congress found to exist."^® The Supreme 

Court's support for campaign finance disclosure has not wavered: 

• "[T]he important state interests that prompted the Buckley Court to uphold FECA's 

disclosure requirements - providing the electorate with information, deterring actual 

corruption and avoiding any appearance thereof, and gathering the data necessary to 

2 enforce more substantive electioneering restrictions - apply in full to [the disclosure 

4 requirements of the Bipartisan Campaign Reform Act]." 

Q 

^ • "The 1st Amendment protects political speech; and disclosure permits citizens and 

2 shareholders to react to the speech of corporate entities in a proper way."^® 

2 • "With the advent of the Internet, prompt disclosure of expenditures can provide 

0 shareholders and citizens with the information needed to hold coroorations and 

4 eler.tftH nfflr.ials accniintahle fnr their hnisitinns anH siinnnrters 4 elected officials accountable for their positions and supporters." 

• "With modem technology, disclosure now offers a particularly effective means of 

arming the voting public with information."''® 

• "[Djisclosure of contributions minimizes the potential for abuse of the campaign 

finance system."^' 

• "Public disclosure.. .promotes transparency and accountability in the electoral process 

to an extent other measures cannot."^^ 

In fact, in the 38 years since Buckley, the Supreme Court has only once struck down a 

requirement having solely to do with public disclosure of political activity. That 1995 case. 

" Citizens Unitedv. FEC, 558 U.S. 310,371 (2010). 

'*RiicWey,424U.S.at68. 

" McConneil v. FEC, 540 U.S. 93,195 (2003). 

Citizens United, 558 U.S. at 370. 

''Id. 

McCutcheon v. FEC, 134 S. Ct. 1434,1460 (2014). 

Id. at 1459. 

Doe V. Reed, 561 U.S. 186,199 (2010). 

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MUR 6538 (Americans for Job Security) & MUR 6589 (American Action Network) 

Statement of Vice Chair Ravel and Commissioners Walther and Weintraub 

Mclntyre v. Ohio Elections Commission, concerned an individual, Margaret Mclntyre, who 

personally prepared and hand-distributed leaflets at a public meeting urging attendees to vote 

against a local tax levy.^^ She was fined $100 for failing to include her name and address on the 

leaflets - and the Supreme Court thought that this was a bridge too far, even for a mere 

disclosure requirement. Nonetheless, Justice Scalia wrote a forceful dissent favoring disclosure. 

He noted that that anonymous speech "facilitates wrong by eliminating accountability, which 

ordinarily is the very purpose of the anonymity."^ Furthermore, Justice Scalia argued that 

publicity is the "principal impediment" to "mudslinging," "innuendo," "demeaning 

characterization" of candidates, and "dirty tricks."^ Disclosing the identity of the speaker, in 

contrast, "promot[es] a civil and dignified level of debate.""® 

The respondents in these matters are no Margaret Mclntyres."' AJS and AAN are 

sophisticated organizations, which spent many millions of dollars on federal campaign activity. 

The reqriirements for disclosure are not too onerous for these groups. 

Dark money is an increasing problem. The EEC's mission is to ensure that voters receive 

the information they need - the information that the Supreme Court has said they are entitled to -

in order to make informed decisions. The Commission's established approach to evaluating 

political committee status prevents groups like these fix)m operating under a veil of anonymity. 

Our democracy is stronger and public debate is enriched when that veil is lifted. 

Date Ann M. Ravel 

Vice Chair 

Date Steven T. Walther 

Commissioner 

Ellen L. Weintraub 

Commissioner 

^514 U.S. 334 (1995). Mclntyre acted on her own, "[e]xcept for the help provided by her son and a friend, who 

placed some of die leaflets on car windshields in the school parking lot." Id. at 337. 

^514 U.S. at 385 (Scalia, J., dissenting). 

at 382-83. 

'"Wat 382. 

It should also be noted that Mclntyre went out of its way to distinguish the Ohio statute at issue in that case frxim 

the Federal Election Campaign Act. Id. at 356 ("Not only is the Ohio statute's infringement on speech more 

intrusive than the Buckley disclosure requirement, but it rests on different and less powerful state interests."). 

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